Volume 19 — South Carolina Law Reports

<p>A not0 f‘ subject to aii the SÍ between of^^Stuough of;f“Pv™r*^® ^ ^ inquired a^g¿ti0w?“ot2 . , ,. payee, to "ócuritysMprto a an™tLsnote> due, the makers ?,ro not liable..</p>

<p>A contract be-cu^ors,^concern-íhe nation;</p> <p>Where the defendant, anexe-eutor, gave his note to his co-ex-i*cutor for funds in his hands be-longingtothees-tate: Held that timt^ufis1 in'mT vaneo with the' tvfpiaintm- had hunda, 111 his</p> <p>Stockman v. Kinnard. May, 1829.</p>

<p>Before Mr. Justice Gantt, at Anderson — Fall Term, 1'832.</p> <p>This was a scire facias to revive a judgment. Two of the defendants had removed from the State, and as to them notice had been posted on the Court house door that a scire facias -had issued. The defendants residing here and who had. been served, put m a murrer, which was overruled by the presiding Judge, and they now appeal from his decision on the ground that the absent defendants had not been made ties.</p>

<p>r,-omntheb Stole for seven years, heard of, raises tumpaSn oftiTe baild ;°fbut hiii wE tiíe t“s-from tf but ¡mown slin’orimaido! ven yeaís^from effect ofV“uow-“ntracia^^ ScqnioSoaii arCj wh0H thoLusbánd has ;^or resides Soad: in such cases the wife js> in legal /otS?*jX M.cM1°¿^n(;U0S'í. ™(1 <=°>n-</p>

Tried before Mr. Justice Gantt, at Edgefield — Fall Term 1832. This was an action of trespass to try titles. The defendant’s grant was the oldest, and the plaintiff’s deed called for defendant’s land as a boundary. This case therefore depends upon the location of defen-Want’s grant.

<p>Tried at York — Spring Term 1832, before Mr. Justice Earle, who made the following report of the case.</p> <p>This was an action of Trover for a negro girl, named Viney. The plaintiff claimed her by purchase and of sale from Henry Mtachcm. The bill of sale was dated 15 March 1823, included four negroes, a and her children, of whom Viney was one. The consideration expressed was either seven or eleven hundred dollars (the word being written thus “ a leven”) and three notes of hand amounting to $210. Mieachem was indebted to the plaintiff at the time of the sale about $400; she gave him an order on the ex-exutor or her fathers estate for the portion due her, which she estimated at $400, and he at $300, and those sums with the notes formed the consideration paid by plaintiff* for the negroes, being $910 or $1010. on a settlement with the executor had the sum of $400 allowed him on the order, so that the true consideration was $1010.</p> <p>The plaintiff is the sister of Meachenfs wife, and k’s family as a member of it since December 1820, until the present time. When she removed there she had a negro girl whom she hired out from 1° year both before and after her removal. She aiso bought another girl or woman who had children, and she was also hired out; sometimes Meachem him-gave her part of the crop for the latter. After the sale of the negro Phillis and her children, Viney and the others mentioned in the bill of sale, they remained at Meachem’s as before; they sometimes worked in the field and were then under his control, somc-times in the house under the plaintiff. He paid no hire for them nor was there any agreement about their work or that he should feed or clothe them for their She clothed them; it was thought by the witnesses that their labour was not worth more than their victuals and clothes.</p> <p>The girl Viney was taken in execution as the prop- ■ erty of Meachem, by tbe defendant as sheriff, and sold. The levy was in September, 1823, and the sale in January, 1824; and the question on which the case turned was, whether the sale to the plaintiff was fraudulent. Meachem was largely indebted, not only embarrassed, but obviously about to become insolvent. He had purchased the same negroes from Alfred M. Hunt in October 1820, at the price of $1199, a large proportion of which was yet due, for which he was then sued; the writ was served on him Feb. 25,1823.</p> <p>Other suits were pending against him for amounts, and judgments were actually obtained March Term, 1823, to the amount of more than $2500. Under one of the executions thus obtained at March Term, the girl Viney was sold, they were mdla bona for the balance, and no part of them has since been paid; Meachem himself having sworn out of jail.</p> <p>Meachem, besides these debts, had given bond with security as the guardian of his wife’s brother John C. Smith. At the time of the sale to the plaintiff he had not received from the executor, the share of his ward, at least only a small sum. Bartlett Meachem, who had purchased a tract of land of the estate, had paid ■$1200 on his first note for the purchase money. Of this sum Meachem received $600 on account of his own share in right of his wife, and borrowed $600 from the executor for which he gave his note. This note is yet in the hands of the executor unpaid: and there has been no settlement between Meachem and the executor concerning the share of his ward, though both swore that it had been paid to Meachem. It was thus explained by the latter: With the view of settling with his ward who was about to come of age, he contracted to buy of Bartlett Meachem, a tract of land for his ward, 110 acres at $10 per acre. Bartlett Meaehem’s note to the executor for the balance of the price of the land was put in suit in February 1823. When Henry Meachem made the sale to the plaintiff, he procured a credit to be entered on Bart-Lett’s note for $800, composed of $400 on the plaintiff’s order, and $400 on account of John C. Smith the ward.</p> <p>He also transferred to Bartlett the three notes he received from the plaintiff for $210, making the sum of $1010 paid for the land which was conveyed to the ward, and has obtained his entire release from all claims on account of the guardianship. But it could not escape notice, that since the sale, there has been no settlement between the plaintiff and Meachem, although he received $400 on her order, which in the bill of sale was estimated at $300; nor any settlement between the executor and Meachem concerning the share of John, C. Stnitk and this note of $600, yet both swore that the whole, or nearly the whole, had -been paid to Meachem; but neither could tell how, or when, or how much : and although Meachem had the release of the ward, he could shew no settlement by which the amount due was ascertained. In fact he had given him the land for an acquittance.</p> <p>In relation to the fairness of the sale to the plaintiff, and the objects, Meachem was the principal witness. He swore that his object was to prefer some of his creditors to others. He expected judgments would be obtained against him at the ensuing March Term, and he made the sale before they could bind his property, in order to avoid the effect of them. His motive was to pay the plaintiff what he owed her, and to raise funds to enable him to settle with his ward, and thus save his securities on his guardianship bond. ,He did not communicate to the plaintiff his views in making the sale, but she knew that he was largely indebted; he told her that he should be obliged to sell his property; she knew that these were the same negroes he had purchased from Hunt, and that he had. not paid for them ; she knew that Smith Colburn had brought suit for his debt (the negro was sold under his execution) but he told her she would be safe in the purchase. After Viney was sold, the plaintiff sent off the others or sold them to prevent them from being taken under Hunt’s judgment.</p> <p>Shortly before the sale to the plaintiff, Henry Meachem sold to his brother Samuel, another negro, woman for $400; this is also yet in his possession, and has been ever since; but he has promised to pay hire under a contract from year to year. About the same time he also sold his land to Capt. Person, to whom he was indebted in a considerable sum, for $1050, which was a fair price, and Person paid him the balance after discharging his own debt. He has continued to live on the land at an annual rent for which he gives his notes. It was Indian land (Catawba) and Person has taken out a new lease for it and pays the Indian assessment. Meachem since swearing out, has owned no property ; claims nothing on his plantation, but his style of living is as usual, and the plaintiff lives with him.</p> <p>There was contradictory testimony on the subject of the sum expressed in the bill of sale, whether it was seven or eleven. On the evidence the jury might well have found it “ seven,” and I think such was their conclusion. If it was so, then the plaintiff had paid the stipulated price.</p> <p>It was clear too that the sum of $400 was actually due to her, and if Meachem was to be believed, the balance had been actually applied to the discharge of a subsisting obligation. He had not actually received the funds of the ward, but he owed the estate ; and by settling with the ward, he might well conclude he would pro tanto discharge the debt to the estate which was in arrears to the ward.</p> <p>I ought to add that there was no attempt to discredit Meachem by impeaching his veracity or attacking his character; and on the contrary there was an offer to sustain it.</p> <p>The case was submitted to the jury under a charge in conformity to the opinion of the Court in setting aside the former verdict. I considered the main question arose out of the possession of Meachem after an absolute sale and conveyance. Had I felt at ■liberty to deviate from decided cases, I should have held that there was conclusive evidence of fraud, both in the vendor and vendee. On principle and authority 1 conceive that the true doctrine : it is so in England* and with deference, I think it should be so here. I left it to the jury to say whether the explanation was so clear as to leave no room for doubt as. to the fairness of the sale. The only circumstance proved on this point, now, in addition to the evidence on the former trial, is that the negroes were not worth hire, that their labour was not worth more than their victuals and clothes. But still there was no agreement even on that subject.</p> <p>The jury found for the plaintiff $350. The value was proved at $275 to $300 and hire at $15 or 20 per" annum for the girl alone. She might be worth hire, although the family, a woman and children, might not.</p> <p>B. J. EARLE.</p> <p>The defendant appeals on the grounds; First, that according to the evidence, the sale was fraudulent and void as to creditors.</p> <p>Second, that the verdict was for an amount greater than the value of the negro as proved on the trial, and it was also proved that the negroes were not worth hire.</p> <p>Cited this case, 2 Bailey, 118. Ib. 205. 1 Eq. Rep. 345. 2 T. R. 587,</p> <p>Cited, 3 T. R. 618, 620, and note (a.) Twynes case, 3 Coke, 80. 10 Com. Law Rep. 452. 10 Vesey, 139. 5 Taunton, 823. 4 Barn & Cress, 652. 1 Maulé & Selwyn, 251. 1 Brod & Bing, 169. 3 Cowen, 161. 2 Con. Rep. 125. 1 Nott & M’Cord, 334. 1 M’Cord, 228. 2 M’Cord, 362. 4 M’Cord, 294.</p>

<p>Union — Fall Term, 1882.</p> <p>The only questions in this case are, 1st. Is a decree or verdict against the vendor, on a warranty of a personal chattel, in favor of the vendee, conclusive against a prior vendor who has been vouched? and if so, 2ndly, Within what time should notice be given to - * the party vouched ?</p> <p>The doctrine of voucher applies only to real estate ; 6 Jacob L. Diet, title voucher. 4 Dane’s, Abridg. 134, title voucher. 1 Starkie, 189, note 1.</p> <p>The record of recovery is only prima facie evidence against the vendor. Blasdalea. Babcock, l.Tohn. 817. '</p>

<p>do^1¿°aIveil)agv“l *®ap™-ven-ofí“/of¡h°S-ofacKiwoughtby ÍÓndofTi- the S“wthattheJti' uieTeci.utra kei^TcnS,</p>

Tried before Mr. Justice Martin at Lancaster — Fall Term. 1832. This was an action on a note payable to one A. G. Saffold. Plea, the statute of limitation. It appeared that whilst Saffold was the holder of the note, he had given a credit thereon for $885 1826, being the proceeds of notes lodged with him in payment of the note in suit, and received from the fendant in 1822. If the credit was to be considered as given m 1822, the bar was complete, but otherwise if in 1826.

Tried before Mr. Justice Earle, at Chesterfield — Fall Term, 1882. Held: that as the contract, aa^appearaul^ from the bill of sale and note, was absolute and unconditional, the testimony offered, would have the effect of making the bill of sale conditional, and went to shew that instead of buying the negro, the defendant merely took him on trial; that it would also make the note conditional and establish…

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<p>Tried before Mr. Justice Earle, at Spartanburgk— iring Term., 1832.</p> <p>The defendant was indicted for retailing spirits without a license. The fact of retailing being proved, the only defence relied on, was, that the defendant was only acting; as the agent of one George W who had authorized him to supply a Gold Mining Company with spirits, for a few days, out of (Weaver’s) wagon, which the defendant did, and counted to Weaver for the sales ; and that Weaver’s name was known and disclosed at the time. The presiding judge charged the-jury, that the defendant was guilty under the Act; and they, accordingly, convicted him. He now moved for a new trial, on the ground of misdirection by the presiding judge.</p>

Before O’Neall J. (sitting for Martin, J.) at Spar-ianburgh — Fall Term, 1832. Bebt on single bill. Plea, señera! issue, and un~ soundness oí a negro, part oí the consideration of bill. On the trial, the defendants admitted the execution of the single bill, which was payable to phiintiffs, by name, as administrators of A. (Trap, A great deal of evidence was given, on sides, as to the soundness of the negro, which it is unnecessary to detail.

Tried before Mr. Justice Gantt, at Newberry — Fall Term, 1832. This was an action on a promissory note, given by the defendants to Jemima G. Henderson “ or bearer.” After her death and after-the note became due, Nancy Henderson, her mother, passed it to the plaintiff for a valuable consideration. Davis Caldwell is the administrator of Jemima G. Henderson.

Before Mr. Jicstice Earle, at Chesterfield — Fall Term, 1832. The plaintiff in these cases residing out of the State, had been ordered by the Court, to give seeurity for costs. Edward Burch accordingly entered into bond before the Clerk of the Court, to each of the defendants for $500, conditioned tobe void, if the titi recovered judgment m ms suit, or upon the mentoi deiendanrs costs, if the plaintiff failed m his suit, and became liable to pay them.

<p>Tried before Mr. Justice Earle, at Chesterfield — Fall Term, 1832.</p> <p>This was an action of assumpsit on a promissory note drawn by Abram Wilcox, payable to Gordan Robins, or order, at the office of the plaintiffs in Fayetteville, N. C. dated .New-Haven, June 15,1824, indorsed by the payer Robins, to the defendant, and by him to the plaintiffs, a Banking Company chartered State of North Carolina.</p> <p>The note had been protested for non-payment, and the protest of the Notary in Fayetteville, under his notorial seal, was produced, setting out the demand, non-payment and notice to the defendant.</p> <p>A copy of the act of the Legislature of North Carolina incorporating the plaintiffs, duly authenticated, was also produced. The defendant moved for a non-suit on the following grounds :</p> <p>1. That the protest under the notorial seal was not sufficient evidence of demand and non-payment, to charge the indorser.</p> <p>2. That the indorsement was not proved to have been made in North Carolina.</p> <p>3. That the plaintiffs cannot sue in their corporate character in this State.</p> <p>The presiding judge overruled the motion, and the defendant now renews it on the same grounds.</p> <p>Cited, Bacon, Ab. tit. Corporation, E. 2. 2 Ld. Ray. 1532. 1 Str. 613. 2 Kent’s Com. 226. 1 M’C. 80.</p> <p>Cited, 2 Bailey 231. 4 M’C. 57. 5 Johns. Rep. 375. 2 M’C. 132. 1 Con. Rep. 100. 2 Bailey 217. 3 Kent’s Com. 48. 4 Law Journal 1. 10 Mass. Rep. 91. 4 Johns. Ch. Rep. 372. t 5 Crunch 61. 2 Kent’s Com. 226.</p>

<p>a Amyt°odo °r in" mCjmgry sauit. Therefore, sr°o" and c2ned°S his person by a fendants broke tie ropo”’ and iegrof Held to</p> <p>actor ¿ which a fen'cÜiV'whon of would 1 ho lustifiablo, the character in muif bo averred and. vcd-1)ut e «If legation ?m-</p>

<p>authorizing1Stho frc”?aofin?e|i-“del voiunteer co^-shouMhave1»^ !n°thS•*°emo1 Se m¿ít‘ei or IS: ™b"« of a had Cemoii”d íSbeiVseSof “a meat and im-of the beat m which they reside, they are empt from the miiitia^uty, such beat</p>

<p>Before Mr. Justice Martin, at York — Fall Term, 1832.</p> <p>These were actions against the defendants as executors de sontort. On the trial the defendants moved for non suits, on the ground that the actions had been commenced before the expiration of nine months the death of the supposed testators. The pre-sustained the motion, and the plaintiffs ~ •) o / j. appealed, A A</p>

<p>Tried before Mr. Justice Earle, at Sumter — Fall Term, 1832.</p> <p>This was a motion to set aside an execution, (ca. sa.) under the following circumstances ; under the attachment act, the plaintiff had summoned S. J. sard, S. Limebacker and ,1. R. Carter, as They failed to make returns, and the plaintiff at her Term 1826, obtained leave to enter up and accordingly entered up a joint judgment against them, and issued a separate execution against each, *■& sa. Against J. R. Carter, the defendant in this case, a ca. was issued, which he moved to set aside. and he now presiding judge refused the motion, news it on the grounds;</p> <p>. . , . 1. That the execution was issued separately against the defendant on a judgment obtained and entered up jointly against him, and two other co-defendants, and was therefore irregular, erroneous and void.</p> <p>2. Because the execution was in other respects formal and void.</p>

<p>The assignment of a judgment, or unnego-tiable note, in the usual form, creates no liability, onthepart of the assignor; & the rules regulating the liability of the indorser of negotiable instruments, have no direct application to such a case: the parties may make such terms as they think pro-</p> <p>^ In cases of general guaranties of unnegotiable securities, which are assigned, all that the law im- < plies, as a condi- , tion to the as-'</p> <p>signor’s liability, is, that the as-Sa rea”™-first payment, the to the security, by the ordinary toIJéforwLta-means, before be resorts to the assignor; and where such par-solvent at the time of transfer, or became sobe-hy ^</p> <p>case of tSefredifter ^ tim maker, and of^yS^t, ofSushfproTCd. The bringing of against the — 15 ¿0-N doí?°.r-woul<?</p>

<p>1?. B., by his Trill, directed his executors to sell <;all his lands, on geSouthsideof sweat swamp,” the proceedsUa-persons; andby another’ ciause, lauds1 * “to be »°w> distributed among certain Joining ^tracts": acres,lay entire-.side0”of'0 Littic sweatriswampd; were intersected crefk °Hdd S the first clause tractof2ooacres1 evWenco wasnot admissible to explain it.</p>

<p>Tried before Mr. Justice Earle, at Union — Spring Term, 1832.</p> <p>Indebitatus assumpsit, for money had and received, which the defendant, as sheriff' of Union, had collected, and which the plaintiff contended he was entitled to.</p> <p>The plaintiff had recovered a judgment against ffm. Henderson, and lodged his execution, Nov. 6 1824. A levy was made by virtue of this execution, on Henderson’s land, by the defendant’s predeessor in but there was no return showing how this levy had been disposed of. A bill in Equity was afterwards filed by Henderson, to set aside this judgment on the ground of fraud, and an injunction obtained, which continued of force for several years. The bill was finally dismissed. In the mean time the Bank obtained a judgment against Henderson, and lodged an execution in the hands of the defendant, as sheriff, on 27th Oct. 1828. The defendant under this execution, had levied or), and gold Henderson’s land, and the money, a part of which the plaintiff now claims on the ground of having the oldest lien. It did not certainly appear when the injunction was dissolved, probably not until after the levy and sale,un¿er the junior execution. The defendant had paid over the money collected by him, to the representatives of the late Judge Nott, who, by an arrangement with the Bank, became entitled to the proceeds of the execution. They now moved for leave, again, imPea°h the plaintiff’s judgment against Henderson, on the grounds of fraud and mistake, which they to shew by documents and other written evidence. The Court refused the motion. Thede-that there being no return of the sale of the land levied on by the plaintiff’s exe-it was prima facie evidence of satisfaction, to the former sheriff. The presiding judge however, and so charged the jury, that no such presump-could exist when it appeared obvious, that both levies were on the same land, and that the sale on the last, accounted for the first levy. The jury found for the the amount of his execution. The defen-appealed on the following grounds :</p> <p>1* Because the presiding judge refused to permit evidence to be given, to impeach thejudgment of Mitchell v. Henderson on the ground of /» j IlcluCl.</p> <p>2. Because the Court erred in charging the jury, that the levy on the plaintiff’s execution was not evidence of satisfaction.</p> <p>On the 1st ground, cited 2 Starkie, 5Í36, 587. Loft 427. 1 Danes, Ab. 632, art. 1 §3. 2 Saunder’s, PL and Ev. 527. 2 Marsh, 392. 7 Taunton 97. 3 Bos. & Pul. 42. Doug-. 196. 2 Bailey. 337.</p> <p>As to the question whether an injunction against a senior execution, will authorize the sheriff to apply monies received by him, to a junior execution. The English practice, is to deposit money before injunction granted. The act of 1791, 1 Brev. Dig. 203, substitutes a bond for the money, and the plaintiff has his election afterwards to proceed on the bond, or the execution, 1 Bay 219. As to the effect of an injunction, he cited Eden 55, 56. 2 Com. Dig. 392. 4 Dess. 396.</p> <p>The question on the effect of the injunction is not made in the grounds of appeal, and cannot be considered, 4 M’O. 496.</p>

<p>Before»paper in evidonce, as cm-dTtf™1cw dSettiíat itv!¡ the original. This Üy’proífuchig?ín fronTmlhatnñ «« a piper 5iceTdorbyShí¡ ,t Therefore, «¿a-to°‘be an origin? ÜÓr^tho^Prism Safi tifo co«rtofkaif olher0llDistrich evidencia proofof its8™1 *he cieri"8 to aot admissible.</p>

<p>, of ment, interest is w“yof daiíLg®, 3iaiieic*se°or ^</p>

Before Mr- Justice Richardson, at Fairfield — Fall Term, 1832. Trespass for breaking and' entering the plaintiffs’ close and carrying away three slaves, of the proper chattels of the plaintiffs. Pleas, 1. The general issue, to which the plamtitts joined issue. 2.

<p>On an indictment for forgery, the person whoso name i» alleged to have been forged, is not a competent witness to prove the forgery.</p>

Tried before Mr. Justice Gantt, at Edgefield — Fall Term, 1832. Trespass quare clausum fregit. Pleas: 1. Not guilty. 2. That David Richardson, the lessor of the defendant, is a tenant, in common, with the plaintiff.— And, 3. Liberum tenementum, in David Richardson. The facts of the case, and the points made, are so fully stated in the opinion of the Court, as to render any other report unnecessary. ^ A J

Tried before Mr. Justice Gantt, at Newberry — Fall Term, 1832.

Tried before Mr. Justice Earle, at Sumter — Fall Term, 1832. Trespass to try titles. The plaintiff exibited a perfect chain of title to the land in dispute, and the location was not questioned.

<p>°“th p«scribed by the i“ctthíCo™froñe</p> <p>r. K 339,34o.</p> <p>p.l. «3.</p> <p>FausE,273.</p> <p>Acts, 5D, 6o.</p>

<p>Before Mr. Justice Gantt, at Beaufort — Spring Term 1832.</p>

Tried before Mr. Justice Gantt, at Coosawhatchie— Spring Term, 1832. Held: that Beck was an incompetent witness to invalidate the note, or to show that it was given without consideration, and that the obliteration was unimportant and required no explanation.

<p>Tried before Mr. Justice Richardson, at Charleston— Spring Term, 1832.</p>

<p>Tried before Mr. Justice Richardson, at Charleston-— Spring Term, 1832.</p> <p>This was an action brought by the plaintiff, as a sole trader, (joining her husband for conformity) on a note. The defendant pleaded the general issue. siding judge non-suited the plaintiff, because she did not prove the fact, that she was a sole trader; and she appealed and moves to set aside the non-suit, on the ground, that the defendant’s plea admitted her right to sue in the character in which she did.</p>

Triedbefore Mr. Justice Huger, at Charleston — Spring Term, 1830. This was an issue ordered by the Court of Common Pleas, to try the right of property, as between the defendants and the plaintiff, in a certain brig, ed the Junietta. The facts of the casein « -,-j • were as. follows : The vessel in question belonged to one Patrick Usher, a merchant of Wilmington, in North Carolina, who had purchased her in August from the plaintiff, John Welsh, of Philadelphia.

<p>Before Mr. Justice Bay, at Charleston, — Fall Term, 1832.</p>

<p>Before Mr. Justice Richardson, at Charleston— Spring Term, 1832.</p> <p>The plaintiff had declared against the defendants,’as executrix and executor ox David Sealy, on of Sealy. Pleas: Ne unique executor and non assump-sit. Both pleas were found for the plaintiff, and judgment was entered up against the defendants, 18th June, 1831. Thq postea is filled up: that did promise and assume, in manner form, as the plaintiff hath declared: and the judgment is, “that the plaintiff do recover against the defendants, the damages, costs and charges aforesaid, which saití- damages, costs and charges, amount, in the whole, to two hundred & five dollars & eighteen cents, and be the defendants in mercy, <fcc.” The execution ta-out on the same day, commands the sheriff, to le-v5r tllc sum of $205 18, of the goods, &c. of D. Fo- and Anne Eliza, his wife, or, of David Sea-deceased, in their hands. The plaintiff, at this moved the Circuit Court, for leave to amend i>y inserting, after the word “ defendants,” [see the above blanks] the words “ are executor and executrix, and that the said David Sealyand after the wordg! «twQ hundred ar,d flve dollars and five cents,” to insert the words, “to be levied of the goods, &c. of the said David Sealy, in the hands of the said D. Fogartie & Anne Eliza, to be administered, if they have so much in their hands, and if they have not so much in their hands, then, of the proper goods, chattels, &c. of the said D. Fogartie & Anne Eliza and for leave, also, to insert the same words, in the execution. His honor refused leave to amend the execution, and to enter up judgment for the debt, de bonis propriis, but made the following order.— “ On return of the several rules, in this case, It is Ordered, That the plaintiff have leave so far to amend the judgment, as to make it conform to the verdict, to wit, that the plaintiff do recover his debt, and costs, de bonis testatoris, and if no goods of the testator be found, then, that he recover his costs de bonis propriis: It is, also, Ordered, The said debt and costs having been paid, that the said judgment be satisfied.”</p> <p>The plaintiff appealed from this order on the ground: That theAlefendants having plead ne unique executor, the plaintiff is entitled to judgment de bonis propriis, for the debt as well as the costs.</p> <p>Contended that the judgment in this case, should have been entered against the defendants de bonis testatoris si &c., et si ■non de bonis propriis, for the debt and costs; and the Court should have amended it in conformity with the law. On this point he cited, 1 Sannd. 336 note 10; Cro. Jac. 648; Rolls Ab. 930. C. 2, 3, 5; Coke’s Entries, 145. 6.</p> <p>As to the form of the ment, cited, 3 Bacon Ab. 87. Cro. Jac. 191. Dyer 167. As to the amendment; The right of amendment is within the discretion of the Court. That discretion has been exercised, and this Court should not now interfere, 1 Bur, 578. 2 Const. Rep. 261. 3 M’C. 146.</p>

<p>Tried before Mr. Justice Richardson, at Charleston-1832.</p> <p>^ 4 Special assumpsit on a guaranty. The tacts were these. R. D. Smith executed a bond to the defen-conditioned for the payment of two thousand dollars, on which was the following indorsement. — • assign all our right, title and interest to the within bond, and guarantee the payment of the same j «r * • i 0 x */ tO VV ITl« A.1K6IÍ»</p> <p>March 33’ 1835> [Signed,]</p> <p>CHEESEBOROUGH & CAMPBELL.”</p> <p>The name of R. F. Withers, had also been on the bond, but was struck out. As originally written, the assignment and guaranty was not made to any one, but was in blank. In this form, the bond was put into market, and purchased by the plaintiff, with the knowledge and by the advice of the defendants, and the blank in the assignment and guaranty filled with his name. Under this state of facts, the defendants moved for a non-suit on the grounds :</p> <p>1. That the plaintiff had no right to fill up the blank assignment and guaranty with his own name.</p> <p>2. Because the guaranty not expressing any consideration, was void, under the statute of frauds.</p> <p>The presiding judge granted the motion on the last ground, and the plain tiff appeals and moves to set aside the non-suit.</p> <p>cited 6 East, 307. Parker v. Kennedy, 1 Bay 399. 15 Vesey jr. 288. 1 M’C. 249. 1 Jacob’s L. D. 447, obligation.</p> <p>Cited 1 Comyn. Con. 2, 13. 3 Johns. 210. 8 Johns. 29. 4 Barn. & Aid. 595. 3 Brod. & Bing. 14. 2 N. & M’C. 372. 3 Bing. 107. 11. Eng. Com. L. Rep. 373. 2 Starkie, 601. 14 Eng. Com. L. Rep. 250.</p>

<p>Tried before Mr. Justice Richardson at Charleston— Spring Term, 1832.</p> <p>This was an action brought by the Bank of the State of South Carolina, as indorsee, against the fendant, as indorser ofa note, drawn by Ebenezer Flagg, payable to the defendant or order, at the Georgetown Branch, and by her indorsed to the Bank. The tion contained no averment that the notewas edto the Georgetown Branch Bank for payment, but alleged, that at the maturity of the note, a demand was made on Ebenezer Flagg, the maker, and notice of non payment was given thereon, to the fendant. The protest of Eleazer Waterman, a ry public and the book-keeper of the Georgetown Branch, was given in evidence, under the act of 1822. It set forth, that on the day the note became due, he lodged in the post office, in Georgetown, a notice, addressed toEbenezer Flagg, (the maker) at Sandy Isl- and, informing him, that the said note was payable on that day, and demanding payment; to which mand no answer was returned: and that he sent tice of non-payment, by mail, to the defendant, in Charleston. On this evidence the plaintiffs rested their case; and the defendant’s counsel moved for non-suit, on the ground, that the plaintras had neither alleged nor proved a legal demand of payment: that either a demand at the Bank or a personal demand the maker, should have been proved, and that no such demand having been made, the defendant was charged. The presiding Judge overruled the motion, and charged the jury, that although, as a ral rule, a demand on the maker was necessary to fix the liability of the indorser, yet, as in this case, might be fairly presumed, from the evidence, that the maker was not present at the Bank when the note became due, no demand was necessary, or could be made, and that it was sufficient, if the holders of the note were there ready to receivepayment, and no one came to pay. The jury accordingly found a verdict ^-¡g plaintiffs, and the defendant appealed, and now moves in arrest of judgment, for a non-suit, or a new trial, on the following grounds:</p> <p>1. That the declaration contained no allegation that the note was presented at the Branch Bank, for payment, and no proof to this effect was offered.</p> <p>2. That the allegation in the declaration, of a personal demand on the maker, was not proved.</p> <p>3. That the presiding judge mistook the law in charging the jury, that in this case, a demand was unnecessary; because it is submitted such demand was indispensable to fix the liability of the indorser, or only to be dispensed with, on proof that on the day the note fell due, the maker had no funds there for the payment of the note.</p>

This was an action on a note founded on an usurious consideration, and given before the passage of the act of 18SO. The only question in the case was, whether under the act of 1830, the plaintiff could recover the amount of the note without interest. The presiding judge charged the jury that he could not, and they found for the defendant. The plaintiff appealed, and now moves for anew trial, on the ground of error in point of law, in the charge of the presiding judge.

Triedbefore Mr. Justice Richardson, at Charleston— Spring Term, 1832. This was anaetion against the defendant as surety, on the official bond of N. G. Cleary, late sheriff of Charleston district, under the following circumstan-Goldsmith, the real plaintiff in this case, lodged C0. sa, against John Howard in the sheriff’s office, on which Cleary arrested Howard. Whilst he was under arrest, Mr. Thompson the attorney on record, of How-was sent for to the sheriff’s office.

<p>Tried before Mr. Justice Eakle, at Charleston — Spring Term, 1833.</p> <p>This was an action of covenant upon the assign' meat and guaranty of a bond, under the following circumstances. R. D. Smith, and the defendants, purchased jointly from Robert F. Withers, two plantations and a gang of negroes for the sum of $35,000. Their written agreement of the 22nd February, 1825, which was in evidence, sets forth the mode of payment, and provides for the extinguishment of certain claims, and concludes with this clause: “the balance of the purchase money which shall remain due, after the payment of these several demands, shall he settled by two bonds of ft. D. Smith, payable in two equal annual instalments, with J. W. Cheeseborough and A. W. Campbell, as securities.” A bill of sale was executed for the slaves by R. F. Withers to Smith and the defendants. R. D. Smith afterwards executed the bond in suit, payable to Cheeseborough and Campbell, and they assigned and guarantied it to Withers in the following terms :</p> <p>“ We hereby, for value received, transfer and assign the within bond, and the money to become due and payable thereon, to Robert Francis Withers, his heirs, executors, administrators, and assigns, and we do severally, guarantee payment according to the consideration of the same.</p> <p>Charleston, May, 1825.</p> <p>[Signed,]</p> <p>J. W. CHEESEBOROUGH.</p> <p>A. W. CAMPBELL.”</p> <p>The bond was assigned in like manner, and with a like guaranty by Withers to the plaintiff, who brings this action, as the assignee of Withers, against the defendants, the first guarantors, on their guaranty. It was admitted that this bond was one of those, contemplated and provided for, in the clause of the original agreement above quoted, and that it was in part for ^lc consideration of the negroes included in the bill of saie to Smith and the defendants.</p> <p>The defence set up was, that a portion of the ne-groes sold by Withers to É. D. Smith and the defendants, was afterwards taken and sold under a mortgage from Withers to the Commissioner in Equity, dated-in 1816, and that others were recovered from Smith in detinue, brought by the administrator of Mrs. E. Withers, as part of her estate. There were ten of the negroes recovered from Smith by title paramount, and their value greatly exceeded the amount of the bond. It was objected on the paid of the plaintiff that the defendants could not make this de-fence, as it tended to contradict the record and the bond, and to shew that the defendants were obligors, and not obligees. The objection was overruled, and the evidence of failure of consideration admitted.— The jury, under the charge of the presiding judge, found a verdict for the defendants, and the plaintiff appealed and now moves for a new trial, on the grounds, that the presiding judge erred in receiving evidence, and that the verdict was contrary to law.</p>

Before Mr. Justice Gantt, at Coosawhaichie — Spring Term, 1832. Trover for a negro slave named Phillis and her child. The plaintiff brought this action as the ad-rmmstrator oi Sarah Sausey deceased, who was the wife of Gabriel Sausey, also deceased. From evidence adduced on the part of the plaintiff' it appeared that Phillis originally belonged to the estate of Samuel Radcliff, the father of Mrs. Sausey.

• Tried before Mr. Justice Richardson, at Charleston-Spring Term, 1832. This was an action of trespass vi ct armis. The facts were these: . .

Tried lefore Mr. Justice Richardson, at Charleston-Spring Term, 1832. This was an action on the case against the defendant for uttering and publishing a libel, against plaintiff. A lt appeared that there was a controversy about tain negroes, which the plaintiff had in his possession, and claimed for one Murray, and which were claimed by the defendant, on the behalf of the admin-■istratrix of Wm. Wheeler deceased.

<p>Triedbefore Mr. Justice Richardson at Charleston— Spring Term, 1832.</p> <p>This was an action for dower. The jury found a sPec*al verdict, which stated that the husband of the demandant purchased the land in question, from one for one thousand dollars, of which he paid at the time $400 and gave his bond and a mortgage the premises to secure the balance. He died, leav-fog the bond unpaid. After the death of Stoppel-bein, his interest in this land was sold under execution, and purchased by the defendant. The defendant af-purchased the bond and mortgage from Nicholson, for full value, and had them assigned to himself. He is now m possession under the sherin’s deed and this assignment. The Court ordered the postea to be delivered to the demandant, and awarded a writ of admeasurement of dower, with instructions to the commissioners to assess’the dower on the fee simple value of the property at the death of the husband. From this order the defendant appealed, on the ground, that the commissioners should have been instructed to consider the amount due on the mortgage at the time of the husband’s death, and to deduct that sum from the fee simple value, in estimating the demandant’s dower.</p>

Tried before Mr. Justice Richardson, at Charleston— Spring Term, 1832. Held: that the plaintiff could not recover, that the action should have been brought in the name of Dr. Daniel; and the jury being so charged, found for the defendant. The plaintiff appealed, and moves for anew trial on the ground of misdirection on the part of the presiding judge.

'Tried Before Mr. Justice Richardson, at Charleston ; Spring Term, 1832. Trespass to try titles to a lot of land between King and Orange Streets. The plaintiff claimed by deed from Philip Cohen, who by the will of Jacob Jacobs a life estate in a moiety of this lot, with a contin-gent remainder in fee, of the whole.

<p>when the she-re,alIytl10’ expresa ““the awmTótbé JZ to the balance, until the Court can on the de-feuclant’s application to be re-from poetice here, to i?n“sinaSysCtagt u°e®r°yEtry“ iftl‘';cro f which tó amend) :ma%* aVmlmu errorUb”’ f ^nt on therLi</p>

<p>® ?a™slleo nlinghis return, íla"any ti'Sgin attachment tew%M¡¡jrgeb£ Sf^SbSífe S"hc “Sc of moves charged, the plaintiff must objection,'*me bat if“noest3 made'tta Sta feCrtíat,;b‘y¿avé time, within a freomthnedtearmS íralffledUXí mftted tob'me ?t’ after that timé has elapsed.</p>

<p>a pontiff in replevin, one month from tile writ,"ca“ not ffl8Ph£Tfir“ lhT;Lesisi”uire this p°oiíte and court.”*gene-Óf “nalr^pros-ed"”0^0 where uppealancel11 or entere^aftcrthe oase is out of Conrt. ^ 1j"rr<^1®Tia”,t™j isos, no appear- » ¡odgment of ae *¡nt niiy, with-pcarod™Sw¡thi a judgment of nov'vros'</p>

<p>Thirty years adverse possession of personal property, is not ™anc!y adrfrom which a jury thcia*s”oftime! m^Mdnbuf ” in itself, a good tíuir In ubtho title.0 “preJiimp-ííw’ThK0 evÉccf ofaOT muniments of ti-presumptionla-donee, it must decided by the jury ¡ but if ownslewing!*» §££?&£ non-suited.y</p>

Tried before Mr. Justice Evans, at Laurens — Spring Term, 1833. This action was brought before a Justice of the peace, to recover the penalty under the act of 1817, for refusing to enter satisfaction on an execution.— The magistrate gave judgment for the penalty, which under $20. On appeal to the Circuit Court, his of-judgment was reversed, and the plaintiff now appeals * tO tlllS vOUit*

<p>Tried Before Mr. Justice Evans, at Laurens — Spring Term, 1833.</p> <p>This was an action of debt on bond. The bond is in the ordinary form, conditioned for the payment a certain sum in two instalments, one on the 1st January, 1828, and the other on the 1st January, 1829. On the bond is an endorsement signed by the obligee, bpt without seal, in these words: “I have promised W. Dean that he shall have any .indulgence he may want, for the payment of the principal of this bond, upon his paying the interest which may accrue thereon annually on the first day of January, and I hereby authorize my executor or administrator in case of my death, to give-him said indulgence.” The defendant in his plea craves oyer of the bond and the condition : after reciting the condition and the endorsement he pleads performance, by annually paying the interest on the principal sum on the first of January, ac> cording to the terms of the condition and agreement indorsed on the said bond.</p> <p>To this plea the plaintiff demurred generally.</p> <p>The présiding J udge held the plea insufficient, and sustained the demurrer. The defendant appeals on the ground, that the agreement indorsed on the bond, is a part of the condition, and obligatory on the plaintiff.</p>

<p>Tried before Mr. Justice Gantt, at York, Spring Term, 1833.</p>

<p>evidence has not“ groinífó? fess^some*infer-drawncfrom u tmfavnorawem to a crcdita-^by p™ociP“!o*s“rne¿ recovering ^“thTTuretyj r¡g]íts ovale iat-prinSpíust And Sere’aiUverdict m» ’ founT for againsuhe surí win not conclude v/ardstaV101' tion against the rav'oi‘PbLk° the h!ñrfiomalhew~ principal. Lpso date11”? uiTnote SchnT°’Prt v““of the defendant. The tion only accrues of the dpebt“nnd tiicnCommences to run.</p> <p>If a surety dis-of hifeprinci>ab by his own note which is accept-he "may^Sn-tain an ac-üon affainst ,1¡s principal, fur ó'S'aiKl^cxp’oiKí!</p> <p>joint action a-?ip“ aídesurc“y to a note, a diet was found in favor of tito gainstthe surety; this record will not preclude tiio onStwhiche the otSedi ds debt of the where,</p>

<p>adminSrato"or méñtfy SSuK j.s0'íf &™ic $“¡TuPSe fff J^meSf’Sr ST°<¡Sí“Ie“!o ‘I¡rTmaafbLi “ado undor anTwithout no-Sant to® pST; & ^ff6ound° to whether authority f0 son! ciinnot be effoc-¿a by SIcTot hi ti'ie SwproSs. °f</p> <p>Ante 167.</p>

<p>Tried before Mr. Justice Evans, at Edgefield — Spring Term, 1833. '</p> <p>Trespass for taking and selling a female slave, nam-Hilly. The plaintiffs claimed under a deed from their brother, George Anderson, since deceased. This deed, lt.was alledged, is voluntary, and was intended to defraud creditors. After the death of Anderson, j ^ d gm en ts by default were obtained against his ad-at]d executions issued, on one of which, defendant as sheriff, seized and sold the slave in question as the property of the intestate. The negro was in the possession of the plaintiffs at the death of Anderson, and never was in the possession of his ad-ministra tor. Under these circumstances the question whether the sheriff was justified, in seizing and under the execution. The presiding Judge in conformity to a former opinion of the Court in this charged thejury that he was not, and they found a verdict for the plaintiffs, from which the defendant</p>

<p>Tried Before Mr, Justice Gantt, at Chester■ — Spring Term, 1833.</p> <p>This was an action brought -by husband and wife,. against the defendant, for a slander on the wife, in puting to her a want of chastity.* Pleas; not guilty, and ¿justification of the truth of the words spoken, The jury found a verdict for the plaintiffs, of one thousand seven hundred dollars, damages, from which the defendant appealed. The facts of the case, so far as they relate to the points decided, and the grounds of appeal, appear in the following opinion of the Court.</p>

<p>cannot maintain cSm frifit, dono to Hifiu0rÍ Mission of his in"u”y affect So terVest!cSth¡ propor remedy.</p>

<p>The court of power toan-y the it^own^'Tudg-in Sñ”bie being shmra ihof «Site ™ aueshaiibe made tePa to a jury; & proceedings thon is,the3meln°whiic stayod'</p>

<p>If a blank bo ment,tiiemagiS-biankt Zwt mlfuf, i* held to be V0ld'</p>

Tried before Mr. Justice Gantt, at Spartanburgh — ■ Spring Term, 1833. Sum. pro. on note. The subscribing witness to the note on being sworn by the plaintiff, said that he did not* see the defendant sign it, nor was he acquainted with his hand writing. The plaintiff then offered to prove the defendant’s signature by another witness, but the Court refused to receive the evidence, and ordered a nonsuit, which the plaintiff now moves to set aside.

Tried before Mr. Justice Evans, at Abbeville — Spring Term, 1833. This was an action on the case, against the defen-as common carriers on the Savannah river, for loss sustained by the burning of the plaintiff’s cotton, 0n board their boat. The boat was passing down the river when the plaintiff came to a landing, and asked if it could carry his cotton. The patroon (a slave belonging to one of the defendants) answered that it col'dd.

<p>Laurens, Spring Term, 1833.</p> <p>®ebt on Sheriff’s bond. This case was tried before Justice Evans, who made the following report:: 3 o Jr</p> <p>The facts of this case as proved and admitted, are as Prior to the year 1817, one William Bowen was indebted by note to Merrill and others. The note was sent to Mr. Henry Young for collection, some time in 1817. Mr. Young renewed the note, which remained in his possession, until 1824. He then made an affidavit, setting forth the amount and date of the note, that it had been in his pqssession from its date, and that Bowen had paid no part of it to him or the payees, to his knowledge or belief. Upon this affidavit, an order was made by a Justice of Quorum for bail, and the writ lodged with the Sheriff, Barks-dale, who arrested Bowen, and held him to bail. The writ was in assumpsit; in the bail bond, it is mentioned, as a writ in debt. On the return of this writ, a motion was made to discharge the bail — refused by the circuit Court. A judgment was rendered against Bowen and á ca. sa.was issued, and returned nonestinventus. After return, Mr. Young, the Attorney of the plaintiffs in that action, called on the successor of Barksdale, and procured an assignment of the bail bond to the plaintiffs, Merrill and others. An action was brought against Halbert, the bail of Bowen, which was decided in favor of the defendant, on the ground that the bail bond was void. Soon after the execution of the bail bond, Bowen left the State. In December 1826, he was resident at Milledgeville in Georgia, and during that month, he received by virtue of some legislative of the State of Georgia, upwards of $19,000 in cash, and forty Africans. He paid of this sum $2,000, to his creditors there, and about a month after, removed to Florida. He afterwards became insolvent, and has since died. On the 25th July 1829, the plaintiffs in the case against Bowen, sued the present defendant Barksdale, in an action on the case, and were nonsui-ted for want of security for costs. This action lias been since brought, in the name of the Treasurers.</p> <p>“The points made in the pleadings, and in the argument, were the following vit:</p> <p>“1. That no action \yould lie against the Sheriff on his official bond.</p> <p>“2. That the cause of action did not accrue within four years before the commencement of this suit.</p> <p>“3. That the affidavit and order for bail in the action against Hunt, were void on the face of them, and the Sheriff therefore not bound to take bail.</p> <p>“4. That the bail bond taken was valid, and the opinion of the Appeal Court in the case of Merrill v. Hal-bert erroneous. •</p> <p>“5. That the plaintiffs, by taking an assignment of tlm bail bond, discharged the Sheriff.</p> <p>“6- That the aceeptan.ee of the bail bond, has pfe-vented the defendant from resorting to Bowen whilst he was solvent, for indemnity.</p> <p>“On the first ground, I am of opinion the action is properly brought. The words of the act of 1795.. 2 Brev.lÍ7, are, “The bonds may be sued for, by any person who may consider himself aggrieved by any misconduct of the sheriff.” To take a void bail bond, is the same as to- take none. It is an omission to do what the law requires of him, for which he and his se - curities are liable. The only difference in their liability, is, that he-’must be sued to insolvency first. If a nulla bona has been returned against him in any case, he and his securities may be jointly sued, without any previous action against him.. This was decided in the case of the Treasurers v. Bates,. 2 Bailey’s Rep. 362.</p> <p>“On the second ground, it is sufficient to say, that, the statute of limitation, does not apply to an action of debt on a bond. It is true that the plaintiff might have sued the sheriffin an action on the case, and if he had done so, the statute might have beenpleadedin bar of the action. But it is ■ also true, that he has entered into a contract, to secure the performance of his official duty by an instrument to which the'stat. of lim. does not apply, and this may have been, ohe of the reasons which operated with the Legislature in requiring him and his securities to be bound in a bond, rather than a simple contract. The plea of the stat. of lim. is therefore overruled.</p> <p>“I am of opinion the third ground cannot avail the defendant. The objections are, that the affidavit was made by an agent, that the sum due is not set forth with sufficient certainty, and that the affidavit does not negative the payment of the debito the payees. To these objections, the answers are satisfactory. 1. That the affidavit may be made by the plaintiff his wife or a third person, 1 Tidd. 154. 162. 2. That the amount of the note, and the time when due are set forth. 3d. That the affidavit states, that the note had always been in the possession of Mr. Young, that it ucver had been paid to him, nor to the plaintiff, as he believed. In Lowe adrar, v. Mayson, 3. McCord 313, the plaintiff swore that notes had been found •among his intestate’s papers, from which it appeared the defendant was indebted $1700, and this was held sufficient.</p> <p>“The appeal Court in the case of Merrill v. Halbert, decided that the bond taken by the defendant Barks-dale was void, and this is a sufficient answer to the fourth ground.</p> <p>“In relation to the fifth ground, I think the correct rule is laid down in 2 Saunders 61. Note 7, If the bond be valid, aadthe plaintiff take an assignment, it will discharge the sheriff, but if the bond be void, the plaintiff may still proceed against the sheriff. The reason is this, -the bond is the sheriff’s security. If the plaintiff take an assignment of it, and it be good, the liability of the bail, is substituted for that of the sheriff; but if it be void, the assignee takes nothing in lieu of the sheriff’s liability. In this case there was no agreement to accept the assignment in discharge of the sheriff, and in the absence of proof, the law will not imply such an undertaking, where there is no consideration.</p> <p>“Neither can the sixth ground avail the defendant. The plaintiffs in that action, have not in any way interfered with any efforts of his to indemnify himself out of Bowen. It was the misfortune of both of them, that they did not know the hail bond was void, but the loss must fall-on him, out of whose conduct, the loss has ■arisen: it was the defendant’s fault, that he did not take a sufficient bail bond. I am therefore of opinion, that none of these grounds can avail the defendant, and that the plaintiffs are entitled to recover.”</p> <p>The jury found a verdict for the plaintiff, for the amount of the recovery against Bowen, and the defendant appealed, and moves for a new trial on the grounds ■ taken below.</p>

York—Spring Term, 1833. The sheriff had levied on a wagon, under iions in his office, and left it in the possession of Brown, the defendant, in the execution. Afterwards, the plaintiff, acting as a constable, under magistrate’s ex editions against Brown, also levied on the wagon; at the sale, he bid it off to himself, and afterwards sold it to the defendant. The wagon was quently seized by the sheriff, and sold under the first levy.

<p>A maater w!l0 may mam-tou!°r</p> <p>0fUmo)sbi-ct!" seizure and</p> <p>iuvnotiawM a lrafll!</p>

<p>A guardianis by ms ward, &r Sfe™ '““'j andUe aa not give notice llhlb dissl!nt t0</p>

<p>where midi-SrS“S,1 hi íilose wnt, a» the creditors thoPpomUy is different, on^ SSrfcr°f Svcs</p>

Before Mr. Justice Gantt, at York — Spring Term, 1833. This action was brought on a note, given for prop-bought at a constable’s sale. The plaintiff as a had levied on the property of one Peter Harris, under magistrates’ executions. There was time executions in the sheriff’s office against Harris, andón the day of the constable’s sale, the sheriff attended with the executions, and levied on the property.

Tried before Mr. Justice Evans, at Greenville — Spring Term,, 1833. Debt, on a penal bond, with a condition to make ties to a tract of land, by the first of March then next following The defendant had bought the land sheriff’s sale and sold it to the plaintiff, but not ingthe title deeds, could not describe it with sufficient certainty.

<p>Vide S. C. ante 118.</p>

<p>Tried before Mr. Justice Evans, at Columbia — Fall Term, 1833.</p> <p>Assumpsit on account — Plea, stat. of limitations, The plaintiff’s account consisted of paints and drugs, de^endant for many successive years ; about $40 of it, has accrued within four years before action brought, and credit given for $25. The plaintiff a drug store, and the defendant a confectiona-ry, and each bought of the other, as he wanted, for consumption, or, in the course of business, and there was at that time, mutual accounts between the par-The jury under the charge of the Court, found for the plaintiff only so much of the account as had accrued within four years before,, suit brought: and the plaintiff appealed, on the ground, that this was an account between merchant and merchant, and therefore within the exception of the statute of limitations.</p>

Union — Spring Term, 1833. Case, for malicious prosecution. A motion was made, at this Term, before Mr. Justice Gantt, to the defendant’s bail, on the ground of the of the affidavit. His honor refused the motion, and it is now renewed in this Court.

<p>Tried befare Mr. Justice Martin, at Marion — Spring Term, 1833.</p> <p>This was an action of assumpsit, to recover the amount of a note on the defendant, which the alledged to have been tost. The defendant the statute of limitations. The defendant is fhe son-in-law of the plaintiff. The week theplain-fjjff was to be married the second time, his little daughter, then about eleven years old, at the request her sister, the defendant’s wife, in the absence of her father, got the note out of his desk, and placed where the defendant could get it. She told w^eie ^ was> anc¡ as shortly afterwards it misssing, she has no doubt that he took it.— She kept this transaction concealed until her mar-dage, aaout three years ago. The plaintiff searched for the note, but never knew what had become of it until his daughter told after her marriage. The note was due, and went out of the plaintiff’s possession, more than four years ago, and there was no subsequent promise or acknowledgment proved. The jury found for the plaintiff. The defendant now moves for a new trial, on the ground, that the cause of action was barred by the statute of limitations.</p> <p>The statute of limitations makes no exception in cases of fraud. Can a plaintiff in a Court of law, set up fraud in the defendant, to take a case out of the statute? 2 Sch. & Lef. 634, 2 Dough 654, 20 John. 33, 3 Mass. Rep. 201, Angel on limitations 191 — 2 Chitty on contracts 313. 2 Barn. & Cress. 192. But since the alledged fraud, more than four years have elapsed. This case is distinguishable from Harrell v. Kelly 2 M’C. 426, there the fraud existed in the inception of the contract — in the concealment of the right of action, not so here, for the evidence of the debt, is only concealed.</p> <p>The taking the note by the defendant, was a recognition of the debt, and the statute will only run from then, and not then, if the theft he concealed, until after its discovery. Suppose the defendant had held the plaintiff in duress until the time of the stat. had run out, could he avail himself of his own wrong? There is no distinction on this doctrine between the Courts of law and Equity, and it has been repeatedly held, that fraud prevents the operation of the stat. until after the discovery of the fraud. Harrell v. Kelly 2 M’C. 246 is conclusive—3 P. W. 143, 2 Doug. 655. 3 Mass. Rep201 . E 4q. Rep. 480. 1 M’C. Ch. 426. This is different from the ordinary case of a lost note — The plaintiff could not safely bring suit, for if on the trial, the defendant produced the note, it would defeat him; until after the disclosure, he was not furnished with evidence to account for the defendant’s possession.</p> <p>The defendant is charged with a felony, and by the same act, it is said, he has impliedly promised, to pay the note. There is a plain distinction between this and the cases cited. Here, the plaintiff had a knowledge of the existence of the debt; in the cases referred to, that was concealed. If the plaintiff had brought trover for the note, the conversion being the gist of the action, and that being concealed, might have brought him within the rules laid down on this subject; Strange v. Durham. Brev. Mss. Rep.</p>

<p>JJJ iwte-thopMntiffcon-.“V f'ra.u,clulcnt #nd party or privy,</p> <p>j,” °fm/orfraidS judgments ¿Ms Smo’timVwero '¿"cutio”, in &“ °f “ty'ffr jf «>« sdo had 0</p> <p>al-ietíodetoan^ ty to fraudulent !?uSappm,úm sup-</p> <p>cars*ex duZeyS tóíoy’i,nder eao t“ou htlle' session eommea-cad</p>

<p>a sheriff’s sais day sufficient^ time to have soidon Monda}'; the sheriff must judge whkhauthoS the sale on Tuo-</p> <p>zed Ad sold oTiaSt whe/eon ilvW’dtoC1iive”d originally "con-wwe, fo? many Md" cultivated rid™0add coni limd 1 tL side included bot tracts.</p> <p>&nraiB¡</p> <p>2Faust, 147.</p> <p>j bi**. Rep, «1 4 0rl“ch'</p> <p>6¿.Ti|dr'ev^-;</p> <p>Ch~rIeston,18~Q.</p> <p>tT.Bep.70L</p> <p>i Badger & Be-' vere~u~'z 1tep.f~37 1</p> <p>4 Yatcs ~tep. lii; 2 Yates 516; I Thsziey, 61; 11 John. Rep. 365; 33 John. Rep. 97, 517; 1 Bsdger& Dev. 245.</p> <p>4 M. 246</p> <p>Ante. 644</p> <p>1 N. & M'C. 12; 1 N. & M'C. 408</p> <p>p«’»“.°r’.son1-</p>

<p>Before Mr. Justice Martin, at Sumter — Spring Term, 1833.</p> <p>This was a rule against the sheriff, under the following state of facts. .</p> <p>A fi. fa. was lodged in this case, on the 13th 1827, and afterwards a ca. sa. issued bn which the fendant was arrested, Sept. 1828. Broughton became security for the bounds, which West immediately broke by escape ; and thereupon Broughton paid the plaintiff the debt, and took an assignment of the ex-Willis Ramsay, had a junior fi. fa. against the lodged 17 Oct. 1827, on which the shcr-has lately (in 1832) raised by the sale of the defendant’s property $245, which he is ready to apply to °f these executions, according to the decision of the Court on the point submitted: whether, the lien the plaintiff’s fi. fa has been lost. The presiding Judge held, that by taking the body of the defendant, execution, the lien of the plaintiff’s fi.fa. was lost, an<^ that Broughton the bail, was a mere volunteer, had no right to avoid prior liens, in order to indemnify himself for losses growing out of his misplaced confidence in the defendant: and he ordered the money to applied to Ramsay’s execution.</p> <p>A now Court, to reverse his decision, andto set aside this order, on the ground, that Broughton having taken an assignment from Rich-hourgh of the judgment against West, was entitled to rights, and that the arrest under Richbourgh’s ca. sa, only suspendecl the hen of his fi> fa, so ion# as the j r» -r . * • • j j J J ° defendant remained m custody. ></p> <p>cited and relied on Ma-zyck & Bell, v. Coiel (decided May, 1832) Potts and .Toorr. Richardson, 2 Bailey, 15:'P.L. 456; 5 Coke, 876, Cro. Car. 240.</p> <p>cited Cohen v. Greer, 4 M’C. 509, Mairs v. Smith 3 M’C. 59. 6 T. R. 505.</p>

<p>The holder of weby icSyj picfráusnddreuml ib“‘.it)‘eflll0m pOyaZionLim ¡fpSSí oi-!„Mavyyco.ís™"t jw™-the hoidci-™¿rdXuhiu-fore”tL&hoidei £f0a’ J°tebS' who won u at payee,is'Zuied E“1C mTcT. r,'om</p> <p>« t”act‘°mustt0b¡ ais“avo‘w “‘the-™=otto 4ho C0R~</p> <p>1 cowp. 343; & starkie’s iep Im.l.uM fm — • Buller, N.P. 172; 1 Stai.jd0i 126. mm, 27; 3 ¡tent. Com. 48; Bloss c'omyiS°Rc8 ™ c£>‘</p>

<p>Tried before Mr. Justice Richardson, at Columbia^— Spring Term, 1833.</p> <p>This action was brought on two notes given in payment of a tract of land. The defence was, failure of consideration ; and under a notice of discount, the defendants claimed damages for a breach of ty in the plaintiff’s deed to them.</p> <p>In 1820, the plaintiff by deed with the usual warranty, conveyed the land in question, consisting of 82§ acres to the defendants for the consideration of $1237, one half of which was then paid, and these given for the balance. The land formed part of a tract which originally belonged to Jane Harbison, the wtf’e of Patrick Harbison- Patrick Harbison, and his wife Jane, joined in a deed to their son James Harbi-son, for one moiety of the original tract, out of which James Harbison conveyed the land in question to the and he conveyed to the defendants, who immediately took possession, and have continued to use occupy if ever since. Mrs. Harbison died in 1821, without having renounced her inheritance, and as the fee simple still remained in her until her death, at the ^me °* ^Ie sale to the defendants, the plaintiff had ceríain ^tle to the land; and on her death, he ac-Squired title to only one half of it, to wit, the interest of Patrick and James, as distributees of Jane Harbison. when the defect in the title was discovered, the plaintiff signed the following endorsement on each of the notes, in order to restrain their negotiability viz: “I agree not to transfer this note, until the dispute respecting the land for which it is given is settled, January 22, 1822.”</p> <p>On a bill filed in the Court of Equity, by some of the heirs at law of Jane Harbison for partition, the plaintiff and defendants in this case, came in and were made parties at their own instance ; and on the hearing of the case in 1832, the Court assigned this land to the defendants, in performance of the contract of sale, and decreed that they should hold it as “their own right and property.” The defendants’ title has been thus perfected, since the pendency of this action. The land however, had been rendered unsaleable in consequence of this dispute about the title, and has depreciated in value, and the defendants have offered to re-convey on condition that their notes were surrendered. The presiding Judge charged the jury that the title being then perfect, the defendants were estopped from taking advantage of the former breach of warranty, and therefore the plaintiff was entitled to recover the full amount of the notes. The jury found accordingly, and the defendant now moves for a new trial, on the ground of misdirection in the charge of the presiding Judge.</p> <p>cited M’Kie v. Collins, 2 N. & M’C. 186; Morgan v. Hext. Law Journal.</p>

Tried before Mr-. Justice Martin, at Chesterfield, Spring Term, 1838.

Tried before Mr. Justice Gantt, at Spartanhurgh — ■ Spring Term, 1833. The prisoner was indicted for the murder of James __ i Berry. Held: that the presiding Judge had erred in charging the jury that the prison-was guilty of murder, or excusable homicide ac-cordingly as they believed, whether he shot the de-to preserve himself, or voluntarily; whereas in

Tried before Mr. Justice Richardson, at Edgefield-Full Term, 1833. > ■ Indictment for a riot. — Verdict, guilty. The only question in the case, is whether the acts of the defendants amounted to a riot. The facts sufficiently appear, from the following opinion of the Court.

<p>Tried before Mr. Justice Richardson, at Pickens — Fall Term, 1838.</p> <p>Indictment for an assault and battery. The defendants were all acquitted, except 'Wm. Beck. The facts were these — one of the defendants had lost ther, and suspecting it was stolen, got Beck and the other defendants to aid him in the search. They found the leather on the premises of Noble Anderson, and immediately took him into custody, whether under a warrant or not, did not appear. Whilst this state, some one, not Beck, a ¡deed Anderson if he would not rather be whipped than go to jail ? He plied he would, and then requested Beck to whip him. Beck at first hesitated, but finally, at the earnest entreaty of Anderson, and saying “if it will oblige you I will do it,” consented; and Anderson putting his arms round a tree, he gavejhim a few stripes with a switch. Anderson was then released, but was after-wards prosecuted, convicted and punished for stealing the leather. Under these circumstances, the presiding Judge charged the jury, that Beck was clearly guilty, and they found accordingly. He now moves for a new trial, on the ground that the whipping having been inflicted at the importunity of Anderson, and against the inclination of the defendant, was not an assault and battery.</p>

<p>1“for*1a .UV'indictment; but sráco,T‘p™ty i>° a not</p>

<p>Tried before Mr. Justice Richardson, at Pickens — * Fall Term, 1838.</p> <p>This action was brought against the defendant as sheriff of Pickens district, for an escape. A bail process, Ezekiel McWhorter, bearer, vs. Eli Suttee, been lodged with the present defendant, as sher-on which he had arrested the defendant in that Pase, and afterwards permitted him to escape. The order for bail was indorsed on the writ in these words: {{^6 s¡lerjfp js ordered to take good and substantial bail,” but was not signed by any one. The affidavit to hold to bail, was made by Ezekiel McWhorter, as the agent of Thomas Fullerton, who swore that the defendant Suttee, was indebted to Fullerton. The presiding Judge nonsuited the plaintiff on the ground, that the affidavit was insufficient, and that therefore the order to take bail was a nullity. The plaintiff now moves to set aside the nonsuit.</p>

<p>Tried before Mr. Justice Gantt, at Darlington — Fall Term, 1833.</p>

<p>Before Mr. Justice Gantt, at Darlington — Fall Term, 1833.</p> <p>was a summary process in trespass, for kill-tilC plaintiff’s COW.</p> <p>The defence relied on, was that tire defendant bad a felony in killing and taking away the cow in question, for which lie had been convicted and punished; and that the private injury liad merged m the felony. The presiding Judge decreed for the plaintiff, and the defendant appeals on. the ground taken below.</p>

<p>Chesterfield — Fall Term, 1833.</p>

<p>Tried before Mr. Justice Richardson, at Edgefield — • Fall Term, 1838.</p> <p>The defendant, as the administrator of Sol. M’Kie, ha(la sale of his intestate’s effects, among which were a negro man and his wife. The plaintiff purchased ° , ... x m \ t man; and when the woman was onered tor sale, and was on the point of being bid off by a stranger, defendant (who is the plaintiff’s]father-in-1 aw) ur-o-ed him to buy her. He replied that he was not able: WalCa’ the defendant promised if he would buy the negro, that he (defendant) would give him one dollars. The plaintiff accordingly bid off ^ie negro> and gave his note for her according to the sa^e‘ Lie afterwards paid the note, and then brought this action to recover the hundred dol-</p> <p>The presiding Judge held and so charged, that there was a sufficient consideration to support the promise, and that the plaintiff was entitled to recover. The jury found accordingly, and the defendant appealed, and now moves for a new trial on the ground of error in the charge of the presiding Judge.</p>

<p>Tried before Mr. Justice Richardson, at Edgefield— Fail Term, 1833.</p> <p>This was an action brought on a guardianship bond, payable to the Commissioner in Equity for E dgcfield district, and by him assigned to the plaintiffs. jury, under the charge oí the presiding Judge, found for the plaintiffs, and the defendant now moves for nonsuit on several grounds, but one of which was sidered by the court, and is set forth in the following opinion.</p>

<p>Tried lejore Mr. Justice Gantt, at Darlington — Fall Term, 1833.</p> <p>The only question considered by the court, was, whether a judgment against, the plaintiff, in favor of one John G. Hill, which had been assigned to the defendant before this action was brought, but a copy of which had not been filed according to the 4th Rule of Court, was admissible in discount.</p> <p>The presiding Judge held that it was not ble, for the want of privity between the parties, because a copy was not filed with the notice of discount. The defendant appealed, and moves for a new trial on the ground of error in this decision.</p>

<p>necessary an A survey is not pwonto°£ry' u-established by</p> <p>possession^ hols O1¿ducequirctho0 judgment & the ancefls'agSt tilo judgment & dorlfm insSub“-qucntiy to the ini® hoids by Í veytmeefromthe TOtedbefole'tiio '«nlSS* r stindTi the Smthe “originé</p> <p>eon-veyanco was made to defraud creditors, & the thrt0frauduLit himseif'a'party to the ñaua, and his conveyance is void, although eon sTcler a do Ptasou,L2Bdiy,' 3S4-></p> <p>FÓaSt™So. 3‘Jl</p>

<p>Tried before Mr. Justice Evans, at Lancaster— Term, 1833. Fall</p> <p>This action was brought on a note given for the price of a negro; the defence was a failure of eration; that the negro was unsound and of no value. The bill of sale contained a warranty of title, ami also that the negro was sound and healthy, “to the best of Ms (plantiff’s) knowledge.” Evidence was given by both parties as to the condition of the both before and after the sale, : which, according to the view taken by this court, it is unnecessary to state. The presiding Judge charged thé jury, that this was a special warranty; that the defence to succeed, must establish two propositions. 1st, That the negro was unsound; and 2nd, that the defendant knew it: which questions were submitted for their 'determination. The jury found for the plaintiff, and the defendant now moves for a new trial, on the grounds of error in the charge of the presiding Judge, and because the verdict was contrary to the evidence.</p>

Tried before Mr. Justice Gantt, at Marlborough— Fall Term, 1833. Assumpsit for overseer’s wages. Verdict for the plaintiff. The facts of the case and the points made, s0 ftdty stated in the opinion of the court, as to render a further report unnecessary. J

Tried before Mr. Justice Evans, at Chester — Fall Term, 1833. This action was brought on a note given for the price of a negro. It appeared that the negro formerly belonged to the defendant M’Keown, and had conveyed by him to the plaintiffs’ intestate, either satisfaction of, oras a security for a debt.

<p>where afea 0?°«-*Sfit «¡utca.has been Sr^aout Sf’ Sea? the" noca proceed."</p> <p>rtTSra cTgilt ycai-t*™-^'citufivwch tod been’ rccór* it0 purp“tcdfttí meanwhiie no consistent with ttatthi deed in evidence with-mdSt deed8. a“</p>

<p>interest is not ?hi“hthedfe?-pay a» piainiur IgaSíe.1*"</p>

Tried before Mr. Justice Evans, at Union — Fall Termr 1833. The plaintiff had recovered in an action of trespass to try titles, against C. DeGraffenreid, and lodged an execution with the defendant, who was then sheriff of for the damages and costs to a large amount, greater part of which was witnesses’ costs.

Tried before Mr. Justice Gantt, at Sumter — Fall Term, 1833. had issued a bail writ against John W. Mayrant, and lodged it with the defendant, as sheriff of Sumter. The sheriff served Mayrant personally, c0Py> without taking bail. The plaintiff ob-a judgment, and issued execution against May-who, in the mean time, left the State.

<p>Chesterfield — Fall Term, 1833.</p>

<p>Edgefield — Fall Term, 1833.</p>

<p>a factor, who h?Ta”ntfcipaü™ fm-w™ km-bit missions,on sudi notlS ™m LtorestTn taii in'iiis imiids’.</p>

Tried before Mr. Justice Martin, at Lancaster — Fall Term, 1832. Sum. pro. The defendant hired from the plaintiff a negro man to attend his ferry, for one year, and gave . his note, on which this suit was brought.

Tried before Mr. Justice Evans, at Spartanburgh-Fall Term, 188S. Trespass. The plaintiff had a judgment and execution against one Holt, Under which the sheriff levi-ed °n a mare. At the sale, the plaintiff bought the tmt as an act of kindness, suffered her to remain in Holt’s possession.

Tried before Mr. Justice Evans, at Lancaster — Fait Term, 1833. Trover for a negro woman and. her children. The negroes were the property, and in the possession of Coi. Thos. Ballard until the year 3821, when he de-them to Samuel Caston, the plaintiffs testator.

<p>Tried before Mr. Justice Evans, at Union — Fall Term, 3833.</p> <p>Debt on sheriff’s bond. There were originally ten of these eases, but this court, at May Term, 1831, dered them to be consolidated. A verdict having been found against the defendants on the general issue — the factum of the bond — the presiding Judge permitted the claimants,'in the order in which their cases originally docketed, to submit their demands to a ju- ° J r* ♦ • rrsi a. Jti . iy as on a writ of inquiry. The assessments on the - - - * —- - - the penalty of! first eight cases amounted to the bond, and the court refused to suffer any further™ assessment to be made, as the defendants were liable for any further sum than the penalty. remained still two cases on which no assessments been made, and these creditors contended that were equally entitled with the others. When the first case was submitted to the jury, the evidence to support the claim being a confession of judgment by Bates, the sheriff, the creditors lower down on the docket, objected that the amount of this confession was not due, and offered to go into evidence to that effect. This testimony was objected to, unless ed by the defendants, and they declining to do so, the court, sustained the objection. ‘</p> <p>_ The claimants, whose demands have not been as-i i i ii j sessed, appealed on the grounds,</p> <p>1. That the presiding judge'refused to permit them to give evidence, for the purpose of lessening the demands of the other creditors.</p> <p>2. That the presiding Judge refused to permit them to have their claims assessed by a jury, on irrrif I’nnilirv Wilt OI lnquny.</p>

<p>where the in-Swy aot?,™-drawer'”* sent'amessngefó ££ im ed wk'thTi'o" cessityot a de-SLr ™d no-ticc ^ non-pay-</p>

Tried before Mr. Justice Richardson, at Laurens — - Fall Term, 1833. Trespass to try titles.

Tried before Mr. Justice Martin, at Darlington- Trespass to try titles. The plaintiff claimed<| under ■a deed from the sheriff. Several judgmonts had been obtained against the defendant, and executions lodged, which the sheriff levied on the land in dispute, alia at ms sale, it was purchased by the plamtiii. The sheriff’s deed recites the execution of James son and others, against the defendant.

<p>Tried' before Mr. Justice Gantt, at Union — Spring Term, 1833.</p> <p>Debt on judgment. Plea, payment.- Some time previous to the year 1823, the plaintiff Martin, obtained a j udgment against the defendant’s intestate, which an execution was lodged with®. A. then sheriff of Union. When Martin afterwards ed on Mitchell for the money, he had not collected Ihe defendant, but advanced it to Marlin, with understanding between them, (to which, however, the defendant was not a party,) that he was to be reimbursed when the execution was collected. This action was therefore brought for the benefit of Mitch-On this state of facts, the presiding Judge held, and so charged, that the plaintiff was entitled to recover, and the jury found accordingly. The defendant aPPeals on the grounds, .</p> <p>1. That the evidence was sufficient to sustain the ■* n . plea of payment.</p> <p>2. That underthe circumstances, the plaintiff was ■not entitled to recover.</p>

<p>¿Magistrates fideícvidenee timta .judgment ed, as there is no judgments.</p>

<p>Union — Fall Term, 1832.</p>

Tried before Mr. Justice Gantt, at Chesterfield— Fa'il Term* 2833. ^'11^ was a ru^e against tbe sheriff, to compel him to pay over to the plaintiff, the money collected in tliis case. The facts were these — Daniel Holly ob-a judgment against Schroter, on which both a fa‘ aU(2 ca% m’ were issued, and under the latter, Schroter was arrested about a year ago, and has been confinement ever since, and declares his intention io die in jnd) before he will pay the debt.

Tried before Mr. Justice Evans, at Chester- — Fall Term, 1833. Trover for a negro-verdict for the plaintiff. The action was commenced in the name of the plaintiff and her husband, John M’Daniel, the latter oi whom has since died.

<p>capooatm0final Sff °s°1!ab!ii?hjs precisely «mí óf avoi(i CI,M. y°u!d. charging the pn-uaMehf“r</p> <p>debt-dis' under the A™h»is nS? “rated®?8*!! provided for ia that, or the lnsol-vent Debtor 5th s^heón£ AmZktagsSb-slT™t'y acqu7 the debtor Hable, ^thetaSnVtf-the Act; ihe li* by fo special, SUwXpKÍ</p> <p>se^“ofthoi>rií ““¡2?™'“¿’cifres twebtoruabi,! sÜb-J¿n“iííeTof0pcr-SSL? “hoVorjS-b before^ “¿eha“</p> <p>. has been d¡s-am samo case, h0 refused within réndeT upS tío ed°peuni“sSlgh"y Commfss^oner^of special bail; a from the cierk’e «S°e, for cause would be</p>

Chesterfield, Fall Term, 1833 — before Mr. Justice Gantt. Laurens, Fall Term, J833 — before Mr. Justice Richardson. These eases, both depending on the same question, were considered and adjudged together. They were actions of debt on judgments, recovered in states. -The defendants pleaded the Statute of tations, to which Ineplantms demurred, and the es below sustained the demurrers.